Stevens v. Hughes

The opinion of the Court was delivered by Kennedy, J. This was an action of trespass for entering the lands of the plaintiff below, and cutting and carrying away the timber growing thereon. The plaintiffs in error were the defendants below. The parties, by agreement, stated a case in the nature of a special verdict, upon which the court rendered a judgment in favour of the plaintiff against the plaintiffs in error. The plaintiffs in error, by the case stated, admit the entry upon the lands and the cutting, &c. of the timber, but claim to be the owners thereof in fee. They derive their title from six warrants, dated the 3d of January 1793, each calling for 400 acres, though not particularly for the land in dispute, taken out and originally owned by Samuel Nicholson; upon which the deputy surveyor of the district, in 1794, surveyed 1626 acres 152 perches, by running and marking on the ground -the exterior lines only, and returning, in 1795, into the surveyor-general’s office, a general diagram thereof, without making any division lines, or designating, in any way whatever, what particular part of the whole body of the land was intended to be applied to each of the respective warrants. The defendant in error, who was the plaintiff below, derives his claim to the land from two warrants, bearing date the 6th of September 1792, each calling for 400 acres, but not for the land in contest, upon which surveys were made in 1808 and returned into the surveyor-general’s office in 1811. The purchase money, in full, was paid to the state, for the lands mentioned in the warrants of both the parties, but no patents appear to have been issued upon any of them. Now, as the warrants, under which the parties respectively claim, do not appear to be descriptive of the land in controversy, the question of title, which remains to be decided, depends entirely upon the priority of survey, made and returned into the surveyor-general’s office. If the survey made and returned by the deputy-surveyor upon the warrants under which the plaintiffs in error claim the land, be a good and sufficient appropriation of the land contained in it, it follows clearly that they are entitled to hold the same; and that the judgment of the court below ought to have been rendered in their favour. It seems to have been long [469] since well settled, that surveys of large bodies of lands are good where the exterior lines only are run and marked on the ground, either for a company or an individual, without running the division lines on the ground. Woods v. Ingersoll, (1 Binn. 150); Mock v. Astley, (13 Serg. & Rawle 385). See also Morris v. Travis, (7 Serg. & Rawle 222). And in Ross v. M’Junkin, (14 Serg. & Rawle 364), where two warrants, belonging severally to- two persons, were surveyed together, without running or making a division line in any way between them, and a general diagram of the survey returned by the deputy-surveyor into the surveyor-general’s office, the survey was held to be good and a sufficient appropriation of the land, so that those who entered upon it afterwards, adversely to the warrantees, were adjudged to be trespassers. Now if such a survey be good, when made under two warrants, owned by two persons severally, it is perfectly clear that it would be equally good if made under six or any greater number of warrants, owned severally by as many different individuals. And it is also perfectly clear, that it must be still less liable to objection, if possible, where all the warrants are owned by one and the same person at the time of making the survey, as was the case here. Because, as the whole of the land so surveyed belongs to the same person, a division of it is altogether unnecessary for the purpose of determining the ownership to any particular part of it. The only possible object -for which a division can be required, would seem to be that of issuing patents for it, where an apportionment of it to the several warrants, mentioned in the return of the survey, may be proper, so that a patent may issue on each warrant and the State receive the full amount of fees, that is, 110 upon each patent. But a division and appropriation for this purpose can be made by protraction in the surveyor-general’s office, as well as by going on the ground; for it can be a matter of no concern to any one how the division shall be made. The running and marking on the ground the exterior lines of the survey of the whole body of the land, is quite as good, notice to the world of its having been appropriated, as if it had been divided and distributed among the several warrants, by running and marking the lines on the ground, around the portions respectively intended to be appropriated to each warrant. Judgment reversed, and judgment for the defendants below.